MEMORANDUM ON THE FREEDOM OF
INFORMATION BILL PRESENTED TO THE SENATE OF THE NATIONAL ASSEMBLY

Introduction

In the main, the Freedom of Information (FOI) which is also
known as the Public's Right to Know seeks to give the press and
other citizens the right of free access to information held by government.

There has been several efforts by the media and civil
rights advocacy groups to propel Nigerian into the club of progressive
countries that have liberalised access to public information and for the
abrogation of the Official Secret Act. However Military authorities had
consistently rebuffed the moves.

The return to democratic rule on May 29, 1999 ushered in a
new window of opportunity for the media to push for a Freedom of
information Act. This effort led to the Bil1 before this National Assembly
and it is in furtherance of the possible passage that this Public hearing
is being held by the Senate. The public acclaim received by the HONOURABLE
HOUSE OF REPRESENTATIVE when it passed the bil1last year is indicative of
the Public support for this bill

In the explanatory memorandum, attached to the draft bill
the proposers slated:

I. "This Act seeks to provide a right of access to
public information o records kept by government, public institutions and
or private bodies caring out public functions for citizens and non
citizens of the country.

2. This Act will increase the availability of
public records and information to citizens of the country in order to
participate more effectively in the making and administration of laws and
policies and to promote accountability of public officers.

3. The Act also seek to provide the disclosure of
public records and information by public officers without authorization
thereof provided it is for public interest and such officers are protected
from adverse consequences flowing from such disclose.

4. This Act is intended to complement and not
replace existing procedures for access to public records and information
and is not intended to limit in any way access to those types of official
information that have, hitherto been normal1y available to the general
public".

WHERE ARE WE ON FREEDOM OF EXPRESSION AND ACCESS TO
INFORMATION?

1. It is to be stated from the onset that the
rights to freedom of expression in Nigeria is limited by the following
sections in the constitution.

S.392 (b) "provided that no person, other than the
government of the federation or of a state or any other person or body
authorised by the President in fulfillment of a condition laid down by an
act of the National Assembly shall own, establish or operate a television
or wireless broadcasting station for any purpose whatsoever.

S.39 (3) nothing in this section shall invalidate any
law reasonably justifiable in a democratic society.

(a) for the purpose of preventing the disclosure
of information received in confidence, maintaining the authority and
independence of courts, or regulating telephone, wireless broadcasting,
television or the exhibition cinematography film or

(b) Imposing restrictions upon persons holding
office under the government of the Federation or of a state, members of
the armed forces of the federation or members of the Nigerian Police Force
or other government security services or agencies established by law.

S. 45: Nothing in section 39 shall invalidate any law
that reasonably justifiable in a democratic society.

(a) In the interest of defence public society,
public order public 111orali~y or public health or

(b) For the purpose of protecting the rights and
freedom of other persons"

The world over, Governments are wary of the Press having
access to public information. Aside from the issue of national security
matters which everyone agrees must be protected, public servants in
Nigeria classify every bit of information secret. It has got to a
ridiculous extent that even public information bulletins have "secret"
stamp placed on them!

In many cases the fears of public officials in hoarding
public information are not based on public interest but to cover up shady
deals and shoddy handling of public affairs. Such fears perhaps prevented
the first National Assembly from passing the bill even though all major
issues and fears raised by members were allayed at various consultations
on the FOI Bill.

With regard to the MEDIA, this is the only organ given a
role by the Nigerian Constitution without any enabling power to perform
the role. Section 13 of the 1999 Constitution (the first section under
Chapter 11: Fundamental Objectives and Directive, Principles of State
Policy") stated that "it shall be the duty and responsibility of all
organs of government, and of all authorities and persons. . . to conform
to, observe and apply the provisions of this chapter of the constitution".
This section empowers the Legislative, Executive and Judiciary to carry
out its responsibilities and such powers to perform were given in
different sections of the constitution.

However, the Press was given responsibility under Section
22 thus" The press, radio, television and other agencies of the mass
media shall at all times be free to uphold the .fundamental objectives
contained in this chapter and uphold the responsibility and accountability
of the Government to the people" (emphasis mine). But the Press had no
powers given to it to carry out this Herculean responsibility on behalf of
the people.

The best constitutional provision that would have enhanced
freedom of expression that Nigerians and the Press never got was contained
in the 1995 draft Constitution, which ironically was a product of the
Abacha's constitutional conference. And if the provisions had been
incorporated in the 1999 constitution' perhaps this BILL would not have
been necessary. It would have provided more conducive constitutional cover
for the press and give Nigerians the avenue to hold their government more
accountable and help the transparency process.

S.35 of the 1995 draft constitution gave every Nigerian
including the Press the right to

"(a) ensure the eradication corrupt practices and
abuse of power

(b) protect and preserve public property and

(c) fight against misappropriation and
squandering of public funds"'.

Section 40(3) also stated "the print, electronic and
other agencies of the mass media shall at all times uphold the provision
of this constitution and in giving coverage to any news or programme
ensure the responsibility and accountability of the government to the
people and of 'the people to the government".

S.40 (4) "Every citizen of Nigeria shall be entitled to
know and be informed of 'the activities of the state and any of its organs
and agencies".

Therefore, Compared to the standards in the US and Europe,
the status of press freedom AND ACCESS TO PUBLIC INFORMATION in Nigeria is
far below those of the United States of America and Europe.

It stands to reason that the press is less able to perform
its role as a vehicle for democratic evolution and purveyors of balanced
public opinion in Nigeria than in the countries of USA and Europe.

The Nigeria constitution has not provided enough conducive
environment for the press to perform the constitutional duty imposed on it
by virtue of section 22 of the constitution.

STATUS FREEDOM OF INFORMATION LAW AROUND THE WORLD

In response to growing demands by civil societies, the
media and leaders in many counties, governments around the world are
passing legislations intended to give the public and the press more access
to government and public affairs information hitherto held under secret
vaults with lags such as 'classified' or secret have been made in
40 countries since Sweden's pioneering effort in 1766 Freedom of the Press
Act thirty more countries are in the process of passing the laws under
different titles. The process has been accentuated in the last ten years
by international demands for more transparency in governance being speak
headed by World Bank and IMF as a way to reduce corruption in the public
sector, pressure in new democracies and long established ones to promote
human rights and freedom.

While only Germany and Switzerland are yet to enact
legislations for freedom of information in Western Europe. Almost all
counties in Central and Eastern Europe have adopted law in favour of
access to information.

Many countries in Africa and Asia are currently reviewing
their laws to follow suit. USA had since 1966 enacted its Freedom of
Information Act. The European Union charter of fundamental Rights gives a
right of access to European Parliament, Council and Commission documents
under Article 42. Specifically, the EU introduced the Code of Access to EU
documents in 1993.

While the Commonwealth Law Ministers adopted the Principles
or Freedom of information in

May 1999.

WHY THE NEED FOR FOI IN NIGERIA?

Nigeria can not swim against the tide of world wide
acceptance of Freedom of information as one of the indices of good
governance. Therefore Nigeria must join the World in enhancing the
democratic process through reinforcing the peoples right to know the
activities of their government.

The present administration has embarked on a number of
reforms that are fundamental to the deepening of the democratic process
and achievement of good governance. Such reforms include:

The
Anticorruption policies and programmes

The Due
Process

Budgetary
Revenue Allocation reforms

Banking
reforms and Corporate governance reforms

The Freedom of Information Act is the missing link to
make the reforms achieve the desired result in reorientating those who run
public institutions on behalf of the people

In summary the FOI IS NEEDED NOW TO ACHIEVE THE FOLLOWING:

GOOD
GOVERNANCE

TRANSPARENCY
AND ACCOUNT ABILITY

TO CURB
CORRUPTION AND ASSOCIATED VICES

TO ENHANCE
FREEDOM OF EXPRESSION

TO ENABLE THE
PRESS PERFORM ITS CONSTITUTIONAL RESPONSIBILITY

The Senate must therefore move with speed to pass the Act
so as to complete the loop.

But one more thing - The operators (i.e.) the Press must be
helped at this time to rise up to the challenges thrown up by the FOI. One
of the fears of the lawmakers who once had the opportunity of discussing
the bill is the pervasive poor and deteriorating standards of journalism
practice. With the ethics now at low ebb and experienced hands out of the
vocation owing to poor standards, there is the need to focus attention on
uplifting the conditions of service and practice of the media
professionals.

For instance the present situation where media
practitioners are owed salaries and allowances for upward of 3 months
sometimes up to 6 months is untenable and send such practitioners to the
limits of existence, and this give room for temptations. Putting enormous
powers in the hands of such persons who are under pressure of existence
put the whole society in danger. The Media Enhancement Bill which
will guarantee minimum standard of living, pension, life insurance
coverage, and above all inviolable code of ethics must also be passed by
the National Assembly